Hearsay Evidence and its Admissibility Assignment Sample

Subject Name : Law

Question 1

Part - A

The primary standard for evidence's admission under the Evidence Act 1995 (Cth) is its relevance to the circumstances.[1] It may be essential to consider how the undercover agent interpreted John's comment, "Watch my back; I've got to get this bloke a burger." Linking what would otherwise appear to be an innocuous comment to the suspected illegal conduct might shed light on the meaning behind the statement. Thus, the interpretation of John's comment by an undercover police officer has relevance in the context in which the statement is used.

Expert Evidence

Section 79(1) states that evidence of an opinion that is entirely or significantly dependent on a person's specialist knowledge—derived from training, study, or experience—is exempt from the opinion rule if it comes from that person. According to the High Court, 'Wholly or largely based on the expert's specialised knowledge' is the need for the expert's testimony. It highlights the need for the court to scrutinise the foundation of an expert's opinion.[2] The Victorian Court of Appeal addressed the admission of expert testimony about drug trafficking in R v. Tang. It sheds light on how juries could handle expert testimony that interprets slang or coded words used in drug transactions.[3] The expert's evidence must explain how the field of "specialised knowledge," in which the witness is an expert due to "training, study, or experience," and on which the opinion is "wholly or substantially based," applies to the facts assumed or observed to produce the opinion proffered. This is because an expert's opinion requires demonstrating or examining the scientific or other intellectual basis of the conclusions reached.[4] If all of these points are clear, it is only possible to determine if the view is primarily or exclusively based on the expert's specialist expertise. If the court is uncertain about this, the evidence is technically inadmissible and, if it is, has less weight.[5] The police officer may be considered an authority in gangland drug slang due to their fifteen years of expertise working in the Queensland Police Service's (QPS) Organised Crime Gangs Group. In determining whether the officer's experience directly pertains to comprehending criminal slang and the court needs this kind of knowledge to interpret the statement, the court would make this determination. Expert opinion may be excluded at the trial judge's discretion if the risk that the evidence is improperly biased, misleading or confusing, or might result in an excessive waste of time outweighs the opinion's "probative value."[6] Thus, the defence may object that allowing expert evidence may cause unfair prejudice; however, the probative value can be shown by proving the specialised knowledge of the police officer and training of working undercover to assist the court in understanding the meaning of the phrase.

Part - B

It is widely acknowledged that the privilege against self-incrimination is the source of the right to silence before and during a trial. According to that right, no one may be forced to respond to a question if doing so would put them at risk of being found guilty of a crime, facing penalties, or facing the seizure of their estate.[7] One example of that right of silence is that an accused person cannot be held unfairly accountable for not providing the requested information or for failing to respond to the enquiries. To make such a negative implication would be to undermine or devalue the right to silence.[8] No adverse inference shall be established in a criminal case from a party's lack or reluctance to answer questions or to reply to statements made by an investigating officer, as per section 89 of the Evidence Act 1995 (Cth). The prosecution may contend that the package's arrival implies John's involvement in narcotics trafficking. To prove this link, though, the prosecution will have to depend on additional evidence in the absence of John's testimony. Other than John's silence, the prosecution's claim that the flat was bought with money from drug transactions has to be substantiated. The jury would need to be reminded by the court that neither John's decision to remain silent nor his ownership of the property alone should be used to determine guilt. The judge must instruct the jury that the burden of proof for the appellant's guilt must rest with the Crown, that the appellant has no obligation to establish anything, that he is not required to testify, and that there is no way to infer guilt from his silence.[9] This does not imply, however, that an accused person's silence throughout a trial is meaningless. According to the court, the silence might be considered when assessing additional evidence or conclusions drawn from it.[10]

Part - C

Australian Evidence law stipulates that evidence must be relevant to allow it. Evidence is considered significant if it supports a witness or gives credence. Given that Mary may have information regarding John's engagement in drug-related activities, which is a fact in dispute, her comment may be necessary. Generally speaking, an accused person's spouse was fully competent to testify and might do so on behalf of the prosecution or defence.[11] Nonetheless, the accused's spouse was often only completely compellable by the defence. Only in cases where the accused was charged with an offence in which a spouse or child of the marriage was a victim may the prosecution force the defendant's spouse to testify.[12] Thus, in the present case, Mary may be called to give evidence voluntarily, but the defence cannot compel her to give evidence. As regards the admissibility of the statement uttered by Mary, it is hit by hearsay evidence, which is out of the court statement and is generally not admissible. Thus, she may be subject to proof of previous inconsistent statements if Mary refuses to give evidence or refuses to admit that she made any such statement. The proof may be given whether she made the statement earlier relevant to the particular case as relating to the fact in issue.[13]

Part - D

Given that Mary entered a guilty plea, her credibility as a witness can be called into question. The defence might contend that her legal circumstances swayed her evidence, such as a desire to earn favour or lessen her guilt. Given Mary's accomplice status, the judge might need to issue a specific caution to the jury. In criminal cases, it is customary for judges to warn juries of the risks of convicting based on an accomplice's uncorroborated evidence alone. The Court of Appeal of Victoria overturned convictions in the case of R v. Dalton. [14] . It mandated a new trial because the judge neglected to provide the jury with the appropriate instructions and warnings. In particular, the trial judge failed to give the jury the proper instructions on Ryan and Luckman's guilty pleas and could not issue an "accomplice warning". In situations when co-offenders have entered a guilty plea and are testifying against other accused parties, they must get an accomplice warning. This notice is intended to alert the jury to the possibility that the co-offender's personal interests or current legal circumstances might sway the evidence, raising doubts about its credibility. In R v. Simpson , the court determined that the trial judge erred when she instructed the jury that a co-offenders guilty plea might be used to support the credibility of another witness, mainly when that person's credibility was a significant point of contention during the trial. Further, the judge needs to consider that Mary's confession or statement does not prejudice John. The court has held that a conviction should not solely rest on the uncorroborated testimony of the co-accused.[15] Lastly, the judge may apply his discretion in allowing evidence of Mary's confession to be admissible against John; if it appears to be highly prejudicial with the least probative value, the judge may exclude the evidence.[16]

Question 2

Legal professional privilege (LPP) safeguards secret conversations between clients and their legal advisers in Australia, provided that the contacts were made to provide or receive legal advice or use the information for current or upcoming litigation.[17] It shields those exchanges from being forced to be disclosed, such as by subpoenas, search warrants (dawn raids), and demands for documents from organisations such as the ACCC.[18] It is protected by several federal and state laws, most notably the various jurisdictions' evidence acts, and it is also a substantive common law right.[19] Both oral and written communication, such as emails, are subject to privilege; nonetheless, this article, like competition investigations, focuses primarily on LPP claims pertaining to documents.[20] Suppose a document was created to provide or receive legal advice or be used in ongoing or upcoming litigation. In that case, it is likely protected by privilege (the dominant purpose test).[21] The specifics of each document in issue will determine whether or not LPP covers the records of internal competition audits or investigations. In the past, records of internal investigations created to provide legal counsel on the investigation's subject matter have been deemed privileged. For instance, it was decided that the documents from two internal enquiries into whether an Australian wheat exporter had violated UN resolutions prohibiting payments to Iraq were protected.[22]

Thus, Generally, Brisbane Law is not required to disclose the Legal advice document they rendered to Best Vines. However, the application of an Implied Waiver may dispute this privilege. If someone behaves inconsistent with the confidentiality that privilege is intended to safeguard, it will be assumed that they have waived LPP.[23] A waiver might be broad or specific to particular concerns or sections of a document and can occur openly or implicitly. A few instances of an implied waiver are sharing the advice with a third party or a court and sharing the legal counsel's overall conclusion—for example, by noting it in board minutes. A restricted waiver of privilege in favour of just some parties is conceivable.[24] In a case, the Court interpreted a business's disclosure to the public of its legal counsel as an implicit waiver of privilege.[25] In the case of Ampolex Ltd. v. Perpetual Trustees Co (Canberra) Ltd.[26], it was decided that a party's admission during a dispute that they had received legal assistance in support of their position constituted an implicit concession of privilege.

Relevantly, subsection 122(2) of the Evidence Act 1995 (Cth) states that if the client has behaved in a way that is incompatible with maintaining the privilege, the privilege is forfeited. If the client intentionally and deliberately revealed the material evidence to another individual, or if the material evidence has been released with the client's express or implicit assent, the client will be deemed to have behaved in this manner.

A partial revelation of legal advice, such as its main points, summary, or conclusion, maybe a waiver of the advice's whole privilege. When one party writes to another claiming to have legal advice to a specific effect in order to highlight and promote the strength and substance of the case to be brought against them, this is known as waiver by partial disclosure.[27]

Thus the court may require that Brisbane Law disclose the full report because the Best Wines relied on the advice and disclosed it to prove no wrongdoing in their process. Thus, the advice and disclosure are connected to warrant the full disclosure of the forensic report and advice rendered by Brisbane law.

Question 3

The Evidence Act 1977 (Qld) underwent legislative modification in 1998 to make the procedure of admitting relationship evidence into a case more straightforward. A domestic relationship is defined as "an intimate personal relationship, a family relationship, or an informal care relationship," and Section 132B was introduced to provide that "relevant evidence of the history of the domestic relationship between the defendant and the person against whom the offence was committed is admissible in evidence in the proceeding."The court held that it is hard to argue against the conclusion that the addition of s. 132B was done to ensure that victims of domestic abuse would not have any barriers to providing testimony or the opportunity to tell their tale in its entirety. It might be interpreted as expressing the belief that it is in the public interest for them to be allowed to do so and that doing so will facilitate the prosecution of crimes with a history of domestic abuse.[28] Protected witnesses are covered under the Evidence Act of 1977, which permits orders preventing an unrepresented responder from cross-examining the party who has been wronged. It also gives victims the option to testify from a distance or with the presence of a support person.[29] However, there is a protection vacuum during trials before magistrates since these regulations do not apply to summary trials. The difficulty is striking a balance between the necessity to shield victims from abuse and the defendant's right to cross-examine.

Wilson v. R (1970)44 ALJR 221

Dasreef Pty Ltd v Hawchar [2011] HCA 21

R v Tang [2006] VSCA 163:

Makita (Australia) Pty Ltd v Sprowles 52 NSWLR 705

Hawchar v Dasreef Pty Ltd [2009] NSWDDT 12

Assafiri v The Shell Company of Australia [2010] NSWSC 930

C R Williams, 'Silence in Australia: Probative Force and Rights in the Law of Evidence' (1994) 110 Law Quarterly Review 629, 629-631.

Petty v The Queen (1991) 173 CLR g

Weissensteiner v The Queen (1993) 178 CLR 217

Ibid.

Australian Crime Commission v Stoddart (2011) 282 ALR 620

Australian Law Reform Commission (A.L.R.C.), Evidence Research paper No. I, Comparison of Evidence Legislation applying in Federal Court and Courts of the Territories (1981) 29

Evidence Act 1977 (Qld) s 18.

[2020] QCA 13

R v Burrell [2009] NSWSC 1044

Ridgeway v. R [1995] 69 AJLR 484

Esso Australia Resources Ltd v FCT [1999] HCA 67

Daniels Corporation International Pty Ltd v ACCC [2002] HCA 49

Evidence Act 1995 (Cth) ss 117 – 126.

AWB Ltd v Cole (No 5) (2006) 155 FCR 30

Commissioner of Taxation (Cth) v Pratt Holdings Pty Ltd [2005] FCA 1247

AWB Ltd v Cole (No 5) [2006] FCA 1234

Mann v Carnell (1999) 201 CLR 1

Seven Network Ltd v News Ltd (No 12) [2006] FCA 1131.